Chief Justice Warren E. Burger: We will hear arguments next in Baxter against Palmigiano.

Mr. Dwight you may proceed whenever you are ready.

Mr. Ronald A. Dwight: Mr. Chief Justice and may please the Court.

I am here on behalf of the Attorney General in the State of Rhode Island and Providence Plantations in the case of Baxter v. Palmigiano.

This case centers on two issues, whether counsels are required to be present at in prison disciplinary hearings where the infraction complained off may also be the subject of criminal prosecution.

And second, whether use immunity must be granted for any statements made at the hearing where the silence of the inmate is considered as a factor by the disciplinary board.

Before I address of those two issues, Your Honors, I would like to make mention of a footnote in the Solicitor General’s brief, questioning whether a three-judge court should have been convened in this case and I must state that the Solicitor General was in error when he says that, this case is an attack on the Morris rules because there is nothing any rule or statute or regulation of the State of Rhode Island which prevents counsels from being present at these disciplinary hearings.

The rules are clear that an inmate has a right to assistance by a classification officer or any other individual authorized by the warden and since the decision of the First Circuit, attorneys have been authorized by the warden to be present in these cases.

So therefore, no holding in this case withhold the statute of Rhode Island or regulation to be invalid.

Justice William H. Rehnquist: But you are challenging something about the First Circuit's holding in that respect, are you not on this petition?

Mr. Ronald A. Dwight: We are, Your Honor, but I felt since the question of this Court's jurisdiction had been raised that it was my obligation to bring this --

Justice Harry A. Blackmun: Well, the (Voice Overlap) of Rhode Island has the right act, is it not?

Mr. Ronald A. Dwight: It can, Your Honor.

Justice Harry A. Blackmun: I mean, it is only under the compulsion of the First Circuit seeking this (Inaudible)?

Mr. Ronald A. Dwight: Right.

What am I trying to understand Your Honor especially --

Justice Harry A. Blackmun: As I understood you, you said that they now make provision for counseling in these cases?

Mr. Ronald A. Dwight: Well, under the compulsion of the First Circuit's --

Justice Harry A. Blackmun: But only under only under that compulsion?

Mr. Ronald A. Dwight: Yes, Your Honor.

We advised the warden that there was at the present time prior to the First Circuit's decision no requirement that counsel be present at these hearings.

Justice Potter Stewart: So, your point is in response to Footnote 1 on page 3 of the Government’s amicus curiae brief in this case that this was not an attack on the state wide Morris rules as such?

Mr. Ronald A. Dwight: That is correct, Your Honor.

Justice Potter Stewart: And therefore contrary to the government’s suggestion a three-judge court was not required and that it was properly heard and determined by a single district judge, therefore, the appeal is proper to the Court of Appeals and certiorari of the jurisdiction exists in this Court, is that your point?

Mr. Ronald A. Dwight: That is exactly correct Your Honor.

Justice William H. Rehnquist: But as I understand your reasoning behind that, you are saying that the reason it is not an attack on the Morris rule is that out of force of compulsion you have complied with the First Circuit's judgment and that does not seem to me to be a very satisfactory reason.

There maybe other good reasons why a three-judge District Court was not required, but to say that Rhode Island is now doing something that the First Circuit told it that it had to do that it would not other wise do, I do not know that is an entirely adequate answer of the government’s point?

Mr. Ronald A. Dwight: Well, Your Honor we are just -- we made a legal determination before the First Circuit's decision that legal counsel were not required, but in no way has there been any change in any statute or regulation of the State of Rhode Island, that is my point.

Justice William H. Rehnquist: Well then the action in the District Court was a challenge to a regulation of state wide applicability, was not it?

Mr. Ronald A. Dwight: It was not a regulation, Your Honor.

Justice William H. Rehnquist: Or the consent decree or --

Mr. Ronald A. Dwight: Well, my point is that the Morris rules do not forbid counsel at disciplinary hearings.

They state that it is any person authorized by the warden or the Department Of Corrections and actually when the Morris rules were drafted, I have been told that this specific point was not covered because of the doubt on it, and therefore, they decided to leave it blank.

And to, I will put this language and it will authorize either lawyers and non-lawyers depending on what the law determined to be.

To go on to the facts of the case, inmate Palmigiano who was incarcerated in the Rhode Island Adult Correction Institution for murder.

On November 11th 1972, decided that another inmate needed medical attention and because it was not being granted quickly enough, he went around advising the other inmates not to return to their cells at the time of the 9 p.m. lock up.

He was subsequently charged within Correction's office with inciting a riot and a disruption and he was told that evening that he might be prosecuted for state crime.

Two days later, a disciplinary hearing was held pursuant to the Morris rules and at that time after consulting with his attorney prior to the hearing, he asked that he be admitted to the hearing of the Captain Baxter who was the Chairman of the Disciplinary Board, stated that disciplinary boards, our disciplinary boards, they are not courts of law, it will be treated as a disciplinary case.

You have been offered to postpone it, you refused it.

We do not have as an institutional policy attorney sitting in on disciplinary hearings.

Your request is denied.

A case was brought in the District Court and the District Court of Rhode Island concluded that procedural due process had been awarded to the inmate, Mr. Palmigiano appealed to the First Circuit where the First Circuit held in Baxter one that he was committed to have a retained counsel, but not appointed counsel and that use immunity should be granted for any statements that he made.

The State of Rhode Island petitioned for its certiorari which is granted.

The case was vacated and remanded in light of this Court‘s opinion in Wolff v. McDonnell.

The First Circuit handed down a second opinion in which they stated that no counsel was required except in those cases where an infraction might be the subject of criminal prosecution and in that instance they said that Miranda perhaps required the counsel be present.

And then they also stated the use immunity would be required where the silence of the inmate at the hearing was considered as a factor against him.

It is states position here that this Court's opinion Wolff v. McDonnell has already covered the situation.

If underlying facts in Wolff v. McDonnell include inmates who had committed infractions are also possible subject of criminal prosecution.

The Wolff v. McDonnell case was a class action unlike this case and there were inmates in that case who had -- where they committed infractions for insurrection, threatening to kill an officer, assault and drunkenness.

It is the state's position that because of these underlying facts, Wolff v. McDonnell covers the situations of disciplinary hearings where infractions may also be a subject of possible future criminal prosecution.

More specifically, there is a footnote in the Court's opinion in Wolff v. McDonnell which specifically cites Baxter one.

And in the body of the opinion the Court said that it is our view, however, that the procedures we have now required in prison disciplinary proceedings represent a reasonable accommodation between the interest of the inmates and the need of Institution, footnote 20.

And that footnote reads that the Court of Appeals which have ruled on procedures required in prisonary-disciplinary proceedings have been split.

As to counsels, two circuits have held there is no right and then several cases are cited and then it states the First Circuit, Baxter v. Palmigiano, holds there is a right to retain counsel even where a staff assistant is available.

Well, the Ninth Circuit, Clutchette v. Procunier envisions some sanctions in disciplinary proceedings calling for provision of counsel and has determined that counsel must be provided where a prison rule violation maybe punishable by a state law.

It is our position that this footnote clearly indicates that this Court did not agree with that conclusion and that it is determination in Wolff was supposed to be a reason more accommodation of this type of case as well as the case where the infractions is not the subject to future criminal prosecution.

If one looks at Miranda, which is really the issue here, how far does Miranda apply, once these that the underlined situation there that cause the Court to issue its opinion was the incommunicado interrogation of possible suspects.

Justice William H. Rehnquist: Well, this disciplinary proceeding, is not a criminal proceeding within the meaning of Sixth Amendment, is it?

Mr. Ronald A. Dwight: Not at all Your Honor.

We pointed that out and I think that the Court stated many times in Wolff v. McDonnell that disciplinary hearings are not criminal trials.

But our point is at the Sixth Amendment is not applied here at all and there is any requirement of counsel, it is because the Fifth Amendment does apply certainly and that the Fourteenth Amendment may require counsel if the Court should determine that it is necessary to protect the Fifth Amendment rights of the inmates.

Justice Potter Stewart: The reasoning of the Court of Appeals as I understand it was not to analogize the disciplinary preceding to a criminal trial, but rather to analogize the disciplinary preceding to the in custody interrogation of Miranda, is that right?

Mr. Ronald A. Dwight: That is right Your Honor, and they pointed to Mathis as stating that Miranda applies to an in prison setting, but it is our point of view Your Honor that Miranda applies to incommunicado interrogations.

Here the disciplinary hearing is held under of the auspicious of the Morris rules which is far different from the type of abuse that was a subject in Miranda.

Justice Thurgood Marshall: (Inaudible) Incommunicado.

Mr. Ronald A. Dwight: Your Honor, the inmate is entitled to a counsel substitute with a classification officer at the prison.

Justice Thurgood Marshall: Employed by whom?

Mr. Ronald A. Dwight: Employed by the State of Rhode Island.

Justice Thurgood Marshall: Who in there is not employed by the State?

Mr. Ronald A. Dwight: On the inmate Your Honor would be the (Inaudible) and even the inmate --

Justice Thurgood Marshall: He is not incommunicado but the inmate is there?

Mr. Ronald A. Dwight: Well, Your Honor, there are other safeguards.

Justice Thurgood Marshall: I am waiting for, who else you have in there?

Mr. Ronald A. Dwight: There is no one else Your Honor, but --

Justice Potter Stewart: In the Miranda situation, let us say if it is the person being interrogated as a pauper then his counsel is being employed by the state, is it not?

Mr. Ronald A. Dwight: That is true, Your Honor.

Justice Thurgood Marshall: But who else, do you still say that (Inaudible)?

Mr. Ronald A. Dwight: It is not Your Honor because first of all the inmate has oral and written notice in advanced, so he is not surprised.

He has timely notice about the right to remain silent.

He appears at the disciplinary board with the right to assistance of an authorized counsel substitute.

And in partial tribunal, none of whom reported upon, witness are investigative the alleged infraction, sit on the board.

He has the right to call witnesses and to cross examine them further dispelling any atmosphere of incommunicado interrogation.

Justice Thurgood Marshall: That if those are witnesses are in the jail, I assume.

Mr. Ronald A. Dwight: Or guards Your Honor.

Justice Thurgood Marshall: Oh guards yeah.

Mr. Ronald A. Dwight: And also I think this is a significant, Your Honor.

Justice Thurgood Marshall: But are any outside person allowed in there?

Justice Lewis F. Powell: Does the inmate have the option not to take part in the hearing?

Mr. Ronald A. Dwight: Yes Your Honor.

Sometimes the inmates walk out and refuse to take part in anyway of the board goes on to hear the evidence that is presented and then they make their decision known to the inmate.

Justice William H. Rehnquist: So, they are not compelled to be there at all, I take it?

Mr. Ronald A. Dwight: They are not Your Honor.

In fact, I attended a hearing where an inmate left and then the case was dismissed because of --

Unknown Speaker: But if they are there not compelled to say anything?

Mr. Ronald A. Dwight: No Your Honor, their advice is that they may remain silent.

Justice Thurgood Marshall: You were there, one of (Inaudible)?

Mr. Ronald A. Dwight: I was not at this hearing Your Honor, but I did --

Justice Thurgood Marshall: But the state usually have a lawyer there?

Mr. Ronald A. Dwight: Well, at the present time Your Honor under in to the First Circuit opinion --

Justice Thurgood Marshall: I am talking about when this case came up?

Mr. Ronald A. Dwight: No, lawyers were not permitted.

Justice Thurgood Marshall: But why were you there, you said you went one of the hearing?

Mr. Ronald A. Dwight: I just attended one recently Your Honor, in order to have a real life experience in having attended a hearing.

In case you Honors wanted to ask any questions in how they are conducted.

Justice Lewis F. Powell: If the inmate elects not to remain at the hearing is, does that result in any sanction or punishment?

Mr. Ronald A. Dwight: Well, Your Honor at the time this case was heard, Mr. Palmigiano was advised, you may advise your client to remain mute, but it would be detrimental to his defense and the First Circuit concluded that this was a silence being held against the inmate.

At the present time, the inmates are advised that you have a right to remain silent, and your silence will not be a determinative factor in the decision of the disciplinary board.

That is one of the --

Justice Lewis F. Powell: That rule was changed in that respect following the First Circuit decision?

Mr. Ronald A. Dwight: It was Your Honor.

But it is my position Your Honor that even in this case that the inmate silence was not really held against him.

It is a factor and I feel it is a factor that the disciplinary board should and in realistically will consider.

But the Morris rules require that the determination of the disciplinary board should be based on substantial evidence and the state concedes that the silence of the inmate alone is not substantial evidence and unless there is other independent substantial evidence that the inmate should not be found guilty of the infraction.

Justice William H. Rehnquist: But the board is permitted to consider the inmates’ silence as a failure to refuse, to refute or explain matters within in his knowledge?

Mr. Ronald A. Dwight: Well, at the time of Palmigiano’s hearing Your Honor that was true.

Justice William H. Rehnquist: Do you see anything wrong with that?

Mr. Ronald A. Dwight: Well, Your Honor, there are many decisions of this Court which refuse to allow prosecutors to comment on an inmate's --

Justice William H. Rehnquist: In a criminal proceeding, this --

Mr. Ronald A. Dwight: Right, but and none of those cases has it actually been held that in the states that a jury in a criminal proceeding cannot consider silence.

Justice William H. Rehnquist: Well, then this Court has never held that in a civil proceeding a state is required to draw no inference, whatever from a persons’ claim of self-incrimination, has it?

Mr. Ronald A. Dwight: No, Your Honor.

And all the cases cited by the respondent here concerning criminal trials and it is in our position that this is not a criminal trial.

These people have been constitutionally convicted and afforded all the rights of a free man before they enter prison.

Chief Justice Warren E. Burger: In civil case, if the witness whether a party or not refuses to answer a question on the grounds of possible incrimination, Fifth Amendment grounds, and if the opposing counsel points to that in his closing argument, does that violate any provision of the constitution in the civil case?

Mr. Ronald A. Dwight: I do not know Your Honor, that I would not do it without researching it.

Chief Justice Warren E. Burger: Well, now we are talking about the constitution.

Is there any reason why the lawyer in arguing the case cannot point to that witness, let us say he is the plaintiff in the case and say you heard ask him this question and he declined to answer and I suggest to you he declined to answer and then undertakes to get an explanation?

Mr. Ronald A. Dwight: I know if no impediment, Your Honor.

Chief Justice Warren E. Burger: The constitutional impediment to that all, is there?

Mr. Ronald A. Dwight: I do not think so Your Honor.

I know in a criminal prosecution that would be improper.

Finally Your Honor, there is the question of use immunity, whether any statements that the inmate may make at the hearing could be used against him at a future time.

As I stated in my brief there are some reasons for the state actually to agree with use immunity because it might force the inmates to enter the hearings and to tell their side of the story.

Unknown Speaker: (Voice Overlap) You said at a future time.

Mr. Ronald A. Dwight: I mean in a future --

Unknown Speaker: (Voice Overlap) only if he were prosecuted --

Mr. Ronald A. Dwight: Right!

Unknown Speaker: -- criminally for the conduct which lead to the disciplinary proceedings, is that right?

Mr. Ronald A. Dwight: That is exactly correct Your Honor.

But as a legal proposition, I do not think that there is any constitutional impediment to that testimony being used and this issue really centers on whether Simmons, this Court's’ opinion, Simmons applies here or whether this Court’s opinion in Gardner applies here.

This Court has limited Simmons in many ways in recent years and it is the state's position that this situation is much more akin to that in Gardner.

In Simmons there were two constitutional rights involved, the Fourth and the Fifth.

Here there is only one constitutional right involved.

Whether the inmate is going speak, the Fifth.

That is much more akin to the situation in the Gardner.

The inmate faces a problem that very, a person that is committed a crime faces whether he will claim the Fifth or not and there is compulsion in the sense that it may be in his favor to talk to the disciplinary board, but that is no different than the compulsion in every criminal case and this is not even a criminal case.

So it is the state's position that use immunity is not constitutionally required in this situation and in fact there are impediments under Rhode Island Law to use immunity being granted because generally it can only be done when attorney general applies to the presiding justice of the Superior Court.

Justice Potter Stewart: Only if the law were settled that at any subsequent criminal prosecution, any statement that he had made to disciplinary proceeding would in fact be inadmissible, you have the same result without your problem of granting use immunity by those unauthorized events, do you not?

Mr. Ronald A. Dwight: Yes, Your Honor.

As a rule of evidence, we would have to follow that, but it would add another thing as generally we would probably have to have steno graphic transcription of all the disciplinary hearings to be sure exactly what we said, so that we will be careful not to be using what we said --

Justice Potter Stewart: Well, use immunity would just be forbidding question, did you not testify at the disciplinary hearing A, B, C and D?

Mr. Ronald A. Dwight: Well, but there is also a derivative using in any claim to (Inaudible) Your Honor, so we would have to be careful that we use none of those statements.

Justice Potter Stewart: There is use immunity and there is transactional immunity, we are talking about here about using it?

When we are talking about the narrow immunity considered by this Court in Kastigar --

Justice Potter Stewart: At the most, would not the, if the law were established that as a matter of the law of evidence perhaps required by the constitution that any incriminating thing that he might have said at the disciplinary hearings would not and could not as a matter of evidentiary law of the subsequent criminal prosecution be admitted, that would be and if that were the law and if he were advised of that, that would be the equivalent of use immunity, I suppose with out getting into all the complications that you suggest about these prison officials not being authorized under state law to grant use immunity.

They certainly would be authorized to advise him what the state of the law was?

Mr. Ronald A. Dwight: Absolutely Your Honor and we would have to follow your --

Mr. Ronald A. Dwight: It was Your Honor except for the counsel question.

I mean, if this Court should feel that either has to be counsel or use immunity, the State will certainly prefer use immunity as it is much of the less of a burden on the State.

Also I think in fairness, Your Honors, I should state that the disciplinary hearings now have become two types of hearings, there is one in which the prisoner comes in, discusses with board what happened and he gives his defense and there is a second which he comes in and just stonewalls the disciplinary board because he is advised by the counsel not to say anything.

Chief Justice Warren E. Burger: What do you think is the distinction between the use immunity that you have been discussing and the application or in effect the Miranda doctrine to this situation?

Mr. Ronald A. Dwight: Well, Miranda requires an appointed counsel.

Chief Justice Warren E. Burger: Well, as the law requires.

Mr. Ronald A. Dwight: Well, it also has an evidentiary rule that the statements may not be used.

Chief Justice Warren E. Burger: If there is no counsel, you cannot use the statements.

Mr. Ronald A. Dwight: Right Your Honor.

Chief Justice Warren E. Burger: Now, do you equate that to use immunity, is that your point?

Mr. Ronald A. Dwight: Well, I think what Your Honor is getting at is why do not we just not have lawyers and we have the use immunity automatically, but I think the State would feel that if this Court ruled it and Miranda applied, we have to supply lawyers.

Justice Potter Stewart: Miranda did not lay down a substantive requirement of constitutional law.

Miranda just said that incriminating statements would be inadmissible at the defendant’s trial unless certain safeguards would have been provided at the time those incriminating statements were made.

It did not require any such safeguard.

It is just the rule of exclusion of evidence, was not it?

Mr. Ronald A. Dwight: That is an evidentiary ruling.

That is correct Your Honor.

But on the the counsel question we maintain that these Court's decision in Wolff has already determined that counsel are not required at this hearings and I guess the application Miranda then if Wolff were considered to come into the situation would be that use immunity would we have to be provided.

Justice William H. Rehnquist: Would you -- you contend that is not required either?

Mr. Ronald A. Dwight: Our contention is that as the constitutional matter that is not required by the constitution.

Justice Byron R. White: You do not say your use immunity would be required unless he is compelled to testify?

Mr. Ronald A. Dwight: That is right Your Honor.

Justice William H. Rehnquist: That his problem is just of having to testify in order to explain at disciplinary is just one of the numerous problems that confronts any criminal defendant as witness Magna Carta.

Mr. Ronald A. Dwight: Absolutely Your Honor.

Whenever anyone does something illegal they have to decide whether they are going to fest up or not.

There is only the Fifth Amendment involved here.

There is no weighing of one constitutional right against another.

The First Circuit handed down decision called Flint v. Mullen in which it made a similar determination on the question of a suspension hearings.

Somebody who had been given a suspended sentence and then was brought in and of course that is more akin to a criminal prosecution.

But it was, the Court there decided that there was no constitutional problem and then it was just a weighing problem for the accused as to whether he was going to testify there or remain silent in order to protect his rights at the way to a criminal trial for the offense which he had committed.

Also I would like to point out that the case of Gagnon v. Scarpelli, Your Honors considered the case of somebody who had been given a suspended sentence, I believed it was and in that case the accused had committed a robbery and nowhere did the court when it discussed the counsel requirement there suggest that because the accused there might be subject to future criminal prosecution, and therefore, Miranda required the lawyer automatically at that hearing.

I think that if that is true a fortiori no lawyer should be required at prison disciplinary hearing.

And also, in ultimately making a decision in court, the court has to make a weighing of the rights of the government versus an individual and it is naturally the state's position that there are factors in prison that are very different from those in other situations, those are protecting not only the guards, but the inmates from each other and that rapidly disciplining is very important.

If lawyers are introduced into the disciplinary hearings we have all the problems of scheduling, postponements, weeks and months before an inmate receives the discipline for the infraction which he committed.

I think that many commentators have said that one of the problems with the criminal justice system now is that people that do these things wait so long before anything happens that the purpose to make it known that you cannot commit this things is dispelled because of the delay.

I think it is very important in a prison that disciplinary hearing follow very quickly in the infraction and that is what happened in Palmigiano situation and the state feels that it could do this or rapidly if counsel were not required at the hearings.

I would like to begin by first responding to a question raised by Mr. Justice Powell regarding of the question of whether or not the person can absent himself from the hearing.

My answer to that is no, not when he is charged with a serious in-prison infarction.

I address myself to this problem at page 11 of my brief, footnote 3.

I contend that the reading of the Morris rules in the appendix will indicate there is a distinction between minor infractions and major infractions, not for the minor infraction, I excuse me for the major infraction as we had here he could not have absented himself.

Chief Justice Warren E. Burger: Where do you, is that by virtue of a rule or --?

Mr. Stephen J. Fortunato, Jr.: That is the provisions of the Morris rules.

I would also suggest that I was counsel present here in the record before the Court so indicates and the only thing that the disciplinary board advised us when we raised the counsel question immediately seeking entrance into the disciplinary hearing was that they would consider a postponement to consider our position, but there was no indication of any sort that, well, why does not Palmigiano just go sit this one out and we will proceed accordingly.

I would like to submit to the Court that we seek no extension of Wolff v. McDonnell in disciplinary hearings.

We are not contending that sufficient time has a elapsed from Wolff v. McDonnell so that this Court may now reconsider whether such circumstances have changed, so that additional safeguard should be afforded at the in-prison process.

In seeking the ingress of counsel into these proceedings, we are not asking that counsel be permitted to cross examine, to challenge the composition of the board, to assist the inmate in the presentation of his case as such, but solely to be there if there is to be interrogation and if in fact a criminal prosecution is threatened.

Justice Harry A. Blackmun: Was this something like the assistance that a lawyer may give a grand jury, what --?

Mr. Stephen J. Fortunato, Jr.: Clearly, Your Honor --

Justice Harry A. Blackmun: You would have a lawyer present at the hearing and so?

Mr. Stephen J. Fortunato, Jr.: We would analogize this to the Miranda, Mathis situation the in-custody interrogation and submit that a where --

Justice Harry A. Blackmun: What precisely -- what would be the role of the lawyer?

Mr. Stephen J. Fortunato, Jr.: The lawyer would sit there so long as there was to be interrogation, a relative to a possible criminal prosecution.

Justice Harry A. Blackmun: You mean, simply advises his client?

Mr. Stephen J. Fortunato, Jr.: That is it.

Justice Harry A. Blackmun: As a lawyer does before a congressional inquiry for example?

Mr. Stephen J. Fortunato, Jr.: As a lawyer would do at police precinct upon being summoned by the police or via phone call.

Justice Harry A. Blackmun: Say, do not answer this.

Mr. Stephen J. Fortunato, Jr.: Do not answer this, perhaps you would be wise to answer this question and spare your self further aggravations just as I think was indicated in Miranda that that would be one of the functions of the attorney not always to say, be silent, but from time to time speak.

Justice Harry A. Blackmun: And this role, I gather you think no law -- non-lawyer assistant could really perform?

Mr. Stephen J. Fortunato, Jr.: I do, I do not believe that a non-lawyer assistant is sufficiently trained to make the careful distinctions regarding the Fifth Amendment privilege.

Justice Harry A. Blackmun: Now, if he cannot retain a lawyer one must be appointed for him?

Mr. Stephen J. Fortunato, Jr.: I do not think that issue was now before the Court, but I would be constrained to say that if he cannot retain in this Court, we will ultimately find itself, I think called upon to say that the indigent must have a counsel.

Chief Justice Warren E. Burger: Do you have very many inmates in Rhode Island who are not indigents?

Mr. Stephen J. Fortunato, Jr.: Not too many, so I think that would be a problem, but I think --

Justice William H. Rehnquist: When you say present during the interrogation, you mean just during the interrogation of the inmate or during the interrogation of any of the other witness?

Mr. Stephen J. Fortunato, Jr.: Just during the interrogation of the inmate.

We do not seek any extension of counsels’ role.

Justice Byron R. White: Why would this function that you are talking about now not also be called for in situations where there is no other crime involved?

Wolff did say that the counsel would not be required.

Mr. Stephen J. Fortunato, Jr.: Yes.

Justice Byron R. White: And you are saying, but it should be in some situations such as when the conduct is independently a crime?

Mr. Stephen J. Fortunato, Jr.: Yes, I think that we have a qualitatively different situation because --

Unknown Speaker: But only there (Inaudible).

Mr. Stephen J. Fortunato, Jr.: But only there, Your Honor.

Unknown Speaker: Where the acts (Inaudible), the infraction charge may also be a criminal offense?

Mr. Stephen J. Fortunato, Jr.: That is correct.

Justice Byron R. White: But the function of being there when your client is interrogated would seem to be -- until the case is over you really do not know what the conduct is sometime.

So you would like to be there whether in any place, at any time that your client is interrogated?

Mr. Stephen J. Fortunato, Jr.: No, because he is aware of the charge.

The Morris rules are salubrious and insofar as they insist that the man be told in notice that what he did may result in a criminal prosecution.

So we had notice that he was charged with a crime.

He was also told to consult with his attorney which he of course did and it was only we got to the hearing as the record indicates that we were excluded.

Now --

Justice William H. Rehnquist: We have got a little bit of a problem and it is the Morris rules may not be applicable anywhere else and by virtue of the state stipulation grabs something that the Morris rules provide may not be required by the constitution?

Mr. Stephen J. Fortunato, Jr.: That is correct and I think that the First Circuit said that the Morris rules cannot be construed as filling all the constitutional gaps, and therefore, we are here now contending that due process --

Justice William H. Rehnquist: But can concomitantly the Morris rule, it is not just the question whether the Morris rules go far enough to satisfy the constitution as you intimate the First Circuit said, but it is quite possible since the state stipulated that the Morris rules may in some instances go further than the constitution requires?

Mr. Stephen J. Fortunato, Jr.: In some cases they may well do that.

Justice William H. Rehnquist: So it seems to be it is not always a wise predicate to argue from something that is in the Morris rules as if that were a constitutional given?

Mr. Stephen J. Fortunato, Jr.: No, I would not do that.

I would suggest that the constitution requires and the proper effectuation of the Fifth Amendment privilege requires that counsel be present.

Now, one possible way of solving the problem would be the grant of use immunity.

However, as counsel for the state pointed out, the prison disciplinary board is not empowered to make such a grant.

Justice Byron R. White: What if they did the next best thing and said, look, I will tell you what we will not do, we will not ask your client a question.

He wants to say something and he can say something, but we are just not going to ask him anything.

We are going to put on our evidence, if he is got anything to answer, we will let him answer?

Mr. Stephen J. Fortunato, Jr.: If they said that we will not interrogate and if they also said we will not consider his silence against him then I would be forced to concede that counsel perhaps should not be included in the --

Justice Byron R. White: So, you do not -- at least Wolff it seems to me said that you do not need counsel present to decide whether or not to testify?

Mr. Stephen J. Fortunato, Jr.: Apparent -- yes, if you are only dealing in a situation where and I do not believe Wolff addressed this question where there is no criminal prosecution threatened.

Justice William H. Rehnquist: And Wolff certainly did not qualify the language at all, it says no counsel.

Mr. Stephen J. Fortunato, Jr.: That is certainly the holding of Wolff.

I would merely submit that by a listing in Footnote 20, numerous cases around the country that the Court was not commenting one way or the other on the merits of those cases.

Chief Justice Warren E. Burger: What provision in the constitution do you suggest requires then the prison authorities to tell the inmate that his silence will not be taken into account?

Mr. Stephen J. Fortunato, Jr.: I would suggest that the Fifth Amendment and the due process notions of effectuating --

Chief Justice Warren E. Burger: Is there any case that is ever held that you can say to us that tells us that he must be affirmatively told that his silence will not be used against him?

Mr. Stephen J. Fortunato, Jr.: Not that it says that his silence will not be used against him, but I do not think that he can be compelled and this is where we get to the issue of a compulsion of this custodial interrogation, that is Palmigiano was told, yeah, sure you can be silent.

He was also, I think, it is somewhat mislead by being told that if you speak it will not be used in the Court of Law, but in any event, he was told your silence will be held against you if you do not choose to speak.

Justice William H. Rehnquist: What is the matter with that in the civil proceeding?

Mr. Stephen J. Fortunato, Jr.: Well, I think Your Honor, and Your Honors colloquy with the Attorney General, I think that in a civil proceeding there is no prejudice of a constitutional dimension for failure to call a witness forward and certainly you can comment to the jury, let us note here the absence of such and such a witness or somebody’s failure to even to be present in the courtroom.

Justice William H. Rehnquist: Or the plaintiff’s claim of the Fifth Amendment when he is asked a question by defense counsel?

Mr. Stephen J. Fortunato, Jr.: Yes, but I think you have a qualitatively different situation here when we keep our eye on the future criminal prosecution and we argue along the line of Gardner versus Broderick and Lefkowitz that even though the disciplinary proceeding itself is a Civil, non-criminal, if you will, proceeding, nonetheless at that point the tribunal’s decision to use his silence is substantive evidence against him acted as a compulsion.

Justice William J. Brennan: (Voice Overlap) is not there a difference between using his silence, the disciplinary board using his silence as an inference that the alleged infraction was in fact committed by him and if he is been prosecuted using his silence in the criminal prosecution, is not there a difference?

Mr. Stephen J. Fortunato, Jr.: Perhaps I can answer this question by --

Justice William J. Brennan: But there is a difference, is not there?

Mr. Stephen J. Fortunato, Jr.: Yes.

There is somewhat of a difference, but I do not think that would change my position.

What I mean --

Justice William J. Brennan: Then you would say they cannot use his silence either as bearing on whether he did it -- on whether he committed the infraction?

Mr. Stephen J. Fortunato, Jr.: That is correct.

Justice William J. Brennan: Or use the silence if later he is prosecuted for the very same conduct?

Mr. Stephen J. Fortunato, Jr.: That is correct.

Justice William J. Brennan: I should think there is a difference between the --

Mr. Stephen J. Fortunato, Jr.: Well, what I would suggest is that I certainly agree with the position of the state and various opinions of this Court which point out that an election between two constitutional rights cannot always leave person having his cake and eating it too.

I mean, there are penalties that one suffers, however, I think here if he elects to remains silence -- silent, he forgoes of course his due process right to speak in his own defense.

He may live to regret that decision as a tactic or as a stratagem.

He may go to the trial, take the stand there, let us say in a self-defense case and get an acquittal, maybe he will then regret that he spent 30 days in the hole because he did not come forth there.

He might even have increased regret if despite the threat of criminal prosecution, no criminal prosecution is ever brought to bear on him.

But I do not think that his personal problems he faces are the same as a constitutional punishment, if you will, by having his -- by being compelled to speak and being in a compulsory situation in that regard and I think that the cases of this Court that --

Justice William J. Brennan: As far as -- of course our cases have said that neither judge nor prosecutor at a criminal trial can comment on the fact that one has not taken the stand, but what is the fact of life as far as the jury is concern?

Mr. Stephen J. Fortunato, Jr.: I would say that the fact of life is that despite repeated admonitions from the court, if you do not put your client on the stand, you are in a lot trouble.

Justice William J. Brennan: Are the human beings in compose of the disciplinary to be the only difference?

Mr. Stephen J. Fortunato, Jr.: Yes, but I do not think we should -- they are no different of course, however, the --

Justice William J. Brennan: I mean, even if I say to them, look we will not use your silence against you?

Mr. Stephen J. Fortunato, Jr.: I think what we have to deal with of course is building our record for standing in front of an Appellate Court someday, but the point is that I think what is ultimately of concern is the inmates will on his volition and the factor in the decision of Wolff that now the disciplinary board will have to set forth reasons for the decisions.

So despite the frailties of human nature they will at least have to consider what the guard said or what other inmate said.

Justice Byron R. White: But you really -- you do not object -- you do not say that he needs to be advised that his silence would be use against him, but you object to is that the board telling him that, if you remain quiet that will be used against you?

Mr. Stephen J. Fortunato, Jr.: I object to that, yes.

Justice Byron R. White: And you say that is really compelled?

Mr. Stephen J. Fortunato, Jr.: That is, Your Honor.

Justice Byron R. White: Then you get in the Lefkowitz area of either you talk or we will fire you?

Mr. Stephen J. Fortunato, Jr.: That is correct.

Justice Byron R. White: Either you will talk or I will convict you anyway?

Mr. Stephen J. Fortunato, Jr.: That is correct.

Justice William H. Rehnquist: You do have a civil proceeding here.

Would not the role of the inmate be analogous to that of a civil defendant, that is he ought to be summonable to the stand by whoever is presiding over the hearing and claim his privilege question by question rather than simply be able to invoke a general Fifth Amendment privilege, not even to be called the way a criminal defendant can?

Mr. Stephen J. Fortunato, Jr.: Of course the civil defendant can always summoned to the stand by the adverse party.

Is Your Honor suggesting -- is Your Honor asking what should a judge do on the --

Justice William H. Rehnquist: No.

I am asking is a matter of constitutional law, is there any requirement as the Rhode Island Disciplinary Board not at least call the inmate even against his will to the chair or the stand whatever they have in the room and make him claim his privilege question by question, rather than simply assert a blanket privilege?

Mr. Stephen J. Fortunato, Jr.: The Rhode Island Disciplinary Laws do not -- the so-called Morris rules do not address themselves to that question.

They do say that the inmate shall be summoned before the board and then the inmate shall be interrogated and they use that specific word interrogated at the hearing.

Itself they set in to Nicholas Palmigiano, well Nick, what do you want to say here, that is the direct quote and they also then said well you are remaining silent, are you going to answer any questions we put to you?

Justice Thurgood Marshall: (Inaudible) you are talking about a civil proceeding, but in this Court, civil proceeding you can end up in the hole, cannot you?

Mr. Stephen J. Fortunato, Jr.: That is correct, Your Honor.

Justice Lewis F. Powell: may I come back to some of the prior questions, the answers have left me in some doubt as to your position.

Let us assume for the moment that the rules require that the inmate be advised explicitly that he had the right to remain silent.

not say anything or to elect not to answer any particular question and moreover, if he were advised that his silence would not be used against him, would you still think that the presence of counsel is required by the constitution?

Mr. Stephen J. Fortunato, Jr.: With one addition, then I would agree that counsel may not be required and that would be if there were to be no interrogation of the inmate because dealing in the closed prison society you can tell him he can be silent, that his silence will not be held against him and you can still get into interesting colloquys with prison officials, either immediately outside the room or at the board itself in an effort to, you know, we do not understand the behavior this time, that you are usually so cooperative and we have been good to you people, giving you the prison newspaper and all this sort of thing --

Justice Lewis F. Powell: May I add one other condition?

Suppose also that it were made clear that the inmate may leave the hearing without that consequences.

Let us get back to the first statement you made responding to your opponent.

I think you said there was no option not to attend, but as I understood what the Attorney General said, if the inmate made an appearance he thereafter could leave.

Now, if the inmate could leave, if he had been advised, he might remain silent, could leave in silence and departure would not be used against him, would that answer your problem?

Mr. Stephen J. Fortunato, Jr.: I think it would because then we would have no custodial interrogation although the threat of future criminal prosecution may still hang over his head.

Chief Justice Warren E. Burger: You seem to be proceeding all along the assumption that the inmate does not want to answer any questions, perhaps he wants to answer some questions on the complain.

Now, do you suggest that if he voluntarily wishes to explain some of the -- some parts of the episode that he must have a lawyer there to guide him?

Mr. Stephen J. Fortunato, Jr.: Yes and I would correct any notion I might have conveyed.

I am not saying that in all situations the inmate may not wish to speak.

I am simply saying that to make that careful distinction as to whether or not he should forgo his privilege, looking toward the trial and exercise his due process right to speak in order to perhaps to protect himself from going to the hole or some other in-prison punishment, yes, the lawyer’s counsel would be necessary.

Chief Justice Warren E. Burger: Now, going back to the realities as Justice Brennan I think described them, is there any area of contest inquiry, whether civil or criminal, where a defaulting party does not have his default in reality work against him?

Do you of any such area (Voice Overlap)

Mr. Stephen J. Fortunato, Jr.: Well, I can only say that there have been numerous instances of acquittal when someone has not taken the stand.

Chief Justice Warren E. Burger: That maybe because of the weakness of the evidence against him?

Mr. Stephen J. Fortunato, Jr.: But at least it shows that the jury upon a proper admonition can keep that in its mind.

So while I certainly concede human frailty, I think that in an effort to support the value of non-compulsion, historically and up to the present day we should at least have rules that try to circumscribe the situations enough so that a compulsion and adverse inferences will be minimized and I think that counsel's presence is required in this instance to do that.

A distinction that I would like to call the attention of the Court is that we proceed here solely or seek intrusion of counsel with our attention solely riveted on the trial that looms and its threatened somewhere down the line.

And we do not have the same concern here for a conditional liberty that was present, say in Gagnon or Morrissey v. Brewer and because we are in the Miranda-Mathis situation, we contend, we are entitled to the counsel because of the custodial interrogation.

And so our focus is on the future criminal trial and not so much on getting intruding counsel in here to address himself to the issue so that the defendant or the accused prisoner will not end up in the hole.

Chief Justice Warren E. Burger: What is the notice to the inmate who has been guilty of this infraction informs him that an informal hearing will be held at a particular day and hour in relation to the episode that is in question and that he may come if he wishes and if he comes, he may state his position.

If he wishes, but he will not be compelled to answer any questions and then he comes to take either choice.

He stays away or he comes and sits silent.

Do you suggest that on the basis of the evidence of guards and other inmates, he cannot be subjected to discipline unless he has a lawyer there?

Mr. Stephen J. Fortunato, Jr.: I would add though it is admonitions that you are now the subject of a criminal prosecution you have the right to remain silent.

Chief Justice Warren E. Burger: How do the prison authorities necessarily know that he is going to be a subject, perhaps he will and perhaps he will not?

Mr. Stephen J. Fortunato, Jr.: Well, I think that one can only speculate and hope that based upon their training, they will recognize a crime when they see it.

The fact, I think that we can --

Chief Justice Warren E. Burger: Well the crime of, if it is a crime in the state of inciting a riot or creating a disturbance maybe a rather settled thing in some cases and perhaps they do not know at that time whether any such criminal procedure is going to take place or not?

Mr. Stephen J. Fortunato, Jr.: I think the burden there Your Honor is clearly on the state that when it brings someone into a custodial situation as we contend this is, that they have a burden of advising him that there is a threat in criminal prosecution.

The Morris rules so provide, recognizing that they do not cover every eventuality.

Chief Justice Warren E. Burger: Well, go back to the hypothetical I gave you and the man does not come at all.

He elects not to come and they hear the guards and the other inmates who describe his conduct and then they say, you are going to be put in solitary confinement for 21 days and they cannot do that --

Mr. Stephen J. Fortunato, Jr.: No, on that set of facts they could do that.

Chief Justice Warren E. Burger: They could do that?

Mr. Stephen J. Fortunato, Jr.: Yes they could.

Chief Justice Warren E. Burger: Now, he comes to this informal hearing and remains in the chair silent.

He is offered an opportunity to make a statement and he responds that he does not want to make a statement or answer any questions and then they proceed to do the same thing, any problem?

Mr. Stephen J. Fortunato, Jr.: Yes, I cannot to concede that we should allow prison officials in this position to bring someone in on your set of admonitions or statements, unless it possibly self incriminatory statements.

Chief Justice Warren E. Burger: No, he has not made statements in my second hypothetical.

He made no statement.

He is in invited to make any statement he wishes and he answers that he has no statement to make and that he does not want to answer any questions.

He mute except for that statement declining to make a any utterance?

Mr. Stephen J. Fortunato, Jr.: There is no problem and if that had happen in Palmigiano, we probably would not the here today.

What we are saying that the evil of the Palmigiano situation is the circumstances of the interrogation and the fact that he was advised silence would be held against him, that interrogation was in fact attempted without counsel present.

So we have been in the Appellate Courts and now here today in effect seeking a pre-compliance review with of that type of procedure.

Thank you.

Chief Justice Warren E. Burger: Do you have anything for the counsel?

Rebuttal of Ronald A. Dwight

Mr. Ronald A. Dwight: Yes Your Honor.

I would like to just make two brief points.

Although it is been said that Mr. Palmigiano was told that his silence should be used against him, I think it is important for the Court to note that he was told that it detrimental to his defense and that the Morris rules provide that any finding must be based on substantial evidence.

And the State concedes that silence alone is not substantial evidence because it obviously can be as much consonant with innocence as it is with guilt and --

Chief Justice Warren E. Burger: We have about three minutes remaining after lunch if you have anything further we will adjourn now until 1 o’clock.

You may continue counsel.

Mr. Ronald A. Dwight: Mr. Chief Justice and may please the Court.

I have one last point to make.

The respondent implied that one would be entitled to an instruction that a jury must disregard the silence of the defendant, but I do not think that it states the law correctly because in Griffin this Court stated in the footnote that they would reserve decision whether an accused could require as in Bruno that the jury be instructed that his silence must be disregarded and the Bruno decision rested not on the constitutional grounds, but on a federal statute.

Chief Justice Warren E. Burger: We will hear argument next in Enomoto against Clutchette.

Mr. Stein you may proceed whenever you are ready.

Mr. William Douglas Stein: Mr. Chief Justice, members of the Court and may it please the Court.

I am William Douglas Stein, Deputy Attorney General of the State of California, appearing here today on behalf of Jiro J. Enomoto, the Director of our California Department of Corrections.

This case commenced effectively on November 14, 1970 with a major incident in the visiting room of the San Quentin State Prison, involving an inmate named John Wesley Clutchette, who was then confined in our maximum security section.

As a result of that disturbance, a disciplinary hearing was scheduled six days later for November 20th.

On that same date, counsel, who was representing Mr. Clutchette in a state criminal prosecution that was going on at that time, filed a civil rights action in the United States District Court for the Northern District of California.

That action sought a temporary restraining order to prevent the disciplinary hearing that was scheduled for that date, a declaratory judgment that the procedures used by our department of that time lacked due process safeguards, an injunction barring such hearings and $30,000 in money damages.

Of course, the temporary restraining order was denied, but an order to show cause did issue, returnable on December 4th why a preliminary injunction should not issue in the matter.

The day before I appeared at that order to show cause hearing, the complaint was amended.

The complaint was amended to add one more named plaintiff in the class action allegations.

Since that time, the matter has been considered by the courts as a class action.

Justice Potter Stewart: Had it been, in fact, certified as class action?

Mr. William Douglas Stein: To my knowledge, and I have not found a certification, however, the District Court's opinion discusses relief.

It mentions both, the named plaintiffs, Mr. Clutchette and Mr. Jackson, and ordered -- actually ordered expungement of their disciplinary records, ordered specific relief to them and then mentioned plaintiffs generally.

So, I have taken it that since that opinion and order of the District Court, the matter has been considered as a class action.

Unknown Speaker: Formally certified?

Mr. William Douglas Stein: Not to my --- no, I cannot find nothing in the record formally certifying it.

The --

Unknown Speaker: Significant whether it is treated as a class action?

Mr. William Douglas Stein: It comes up now and again in the case and I am not sure that it is because any injunction that ran, it has always been my position that any injunction that ran is against the procedures that were in use, since those procedures were applied to all inmates.

The issue is going to be decided whether it is a class action or (Voice Overlap)

Unknown Speaker: The named plaintiff is still here, I mean --

Mr. William Douglas Stein: The named plaintiff is -- John Wesley Clutchette is the named plaintiff.

He was subsequently paroled and the other named plaintiff, George Jackson was killed in a escape attempt.

So a third person was and it was by stipulation admitted as a named plaintiff to prevent the exhaustion of the class of plaintiff.

Chief Justice Warren E. Burger: Do you think there is no question about this status of the facts, plaintiffs in the District Court originally?

Mr. William Douglas Stein: We never had -- we never -- there was never any litigation about the class.

The only evidence that was taken -- was taken at a hearing on an order to show cause why a preliminary injunction should not issue.

I appeared there in response to an order show cause about a particular inmate's disciplinary hearing on a particular day, involving a particular incident.

At the close of that, as I say, it was the day before the complaint was amended and at the close of that hearing, the Judge stated that any injunction he issued would in fact be a permanent injunction.

Justice William H. Rehnquist: What do you mean, you thought the hearing was on an preliminary injunction?

Mr. William Douglas Stein: The order to show cause concerned a complaint filed named one plaintiff, John Wesley Clutchette in attack of the conditions or the procedures to be used in his disciplinary hearing on one particular date, November, 20th.

At the hearing, there was evidence taken that the procedures would not materially be different, but as far as the factual issue that we litigated on December 4, 1970, the only evidentiary hearing ever held in this case, concerned a particular incident and the sole witness that was presented, was the Chairman of the Disciplinary Committee that heard Mr. Clutchette’s complaint.

Justice William H. Rehnquist: Well, but that would go to the breadth of the injunction and not to whether it should have been a preliminary as opposed to a permanent?

Mr. William Douglas Stein: That is correct.

Now, as I say, at this evidential hearing we presented or he was called by the petitioners or by the plaintiffs, the man who was the Chairman of the Disciplinary Committee that heard the infraction against inmate Clutchette.

I think material of the issue, the main issue about whether counsel is required at that hearing?

It is his testimony that the standard Miranda warning was given.

That warning had been given in California prisons whenever any disciplinary infraction could be punished as a felony since Dorado case in California which occurred between Escobedo and Miranda.

He was specifically informed that his case appeared to be felony and that it would be or it could be turned over to the local District Attorney who would have a prosecutorial decision to make whether or not to prosecute that case.

Clutchette signed a waiver from.

He signed a from waiving his Miranda rights and he agreed to speak to the committee.

Now, the Chairman of the committee remembered that inmate Clutchette did asked for certain witnesses to be called and that was denied.

At that time, the procedures do not provide for any testimony taken other than by written document.

He was unclear as to whether inmate Clutchette requested his attorney's presence, but it has never been litigated between the parties.

The attorney had sent a telegram to the prison, requesting his presence, and of course, as I say, he filed the action, on the day of the hearing, attempting to stop the hearing so that he could be present.

So there is no evidence in the record that inmate Clutchette did in fact, asked for the attorney, but we have never challenged that.

We have always conceded that he did, in fact, asked at the hearing, just the Chairman could not hear it.

The Chairman testified that had inmate Clutchette refused to waive his Miranda rights, he would not have been questioned.

That they would have been in that situation made their determination of the disposition, first of all, the finding of guilt or innocence and disposition on the basis of the written reports they had before them, and at that time, all of our disciplinary hearings were conducted on the basis of written reports.

There was no live testimony.

The gist of the written reports, he testified were written, or were read to inmate Clutchette.

Now, the reports were voluminous.

I think, there were 13 to 15 supplemental reports.

The rules and regulations of the Director of Corrections require any person having knowledge or seeing incident involving an incident of disciplinary hearing to file a written report.

They were not given to the inmate.

He was not allowed to see them or read them.

The material portions were read to him by the committee.

As I say, the hearing lasted about an hour and the following punishments were imposed.

Inmate Clutchette was ordered, confined in isolation for 29 days, concurrent with being retained in cell status for 29 days, his privileges were removed for 60 days, and the matter was referred to the District Attorney for prosecution.

The matter was, in fact, never prosecuted.

Now, inmate as I pointed out earlier at the start, inmate Clutchette was already housed in our maximum security section.

So he was retained in the same cell, same type of cell as he had been in before the incident.

I believe he was moved to a different cell because isolation requires the removal of personal property from the inmate cell, except for legal materials, religious materials and toilet articles, and I think it was easier to move inmate Clutchette to another blank cell than to remove his goods from his, what then would be property he should not have from his other cell.

So I believe he was moved to another cell that was exact same size, shape, cell that he had been housed in before the incident.

Chief Justice Warren E. Burger: In other words, the isolation was carried out then?

Mr. William Douglas Stein: Well, isolation and that term was used in California that time meant in the testimony, this is in the record, that all personal property, items of personal property except as I said, for religious materials, legal materials and toilet articles, were removed from the cell.

Then he would be, if isolation were the only punishment, he would also be restricted to the cell for 23 hours a day.

He would be allowed one hour a day exercise outside the cell, but this next punishment imposed was cell status which alters that and required him to remain in his cell 24 hours a day.

There was no outside exercise permitted.

However, he was not isolated in the sense that he could not speak to other inmates.

He could not see other inmates' cell next to him as the walls are solid between the cells and there are no cells in that section facing.

But he could speak through the bars to the people on either side and they exercise up and down the tier and he could talk to an inmate who was exercising in the tier.

Now, cell status had an additional penalty.

As I said, the one hour exercise normally allowed inmates and isolation was removed.

So for 29 days he had no outside cell exercise.

He did leave the cell twice a week to shower, for family visits, attorney visits, and for parole board appearances.

That is allowed on cell status.

In addition, the removal of his privileges for 60 days denied him the privilege of purchasing items at the canteen and other limited privileges that were available to maximum security inmates.

Those are very much curtailed because of his housing in maximum security.

As I said, following the hearing, a permanent injunction issued, expungement of the records of the disciplinary proceedings held for the two named plaintiffs were ordered.

The injunction was stayed, pending the appeal by the District Court, except for the part of the opinion that required us to present a plan for conducting disciplinary hearings in the future that complied with the procedure set forth in the District Court's opinion.

Now, we submitted a plan to the District Court in January 1972.

That plan was later put into practice voluntarily by the Director throughout California’s prisons.

As the plan was put into practical effect, certain changes become obvious that had to be made, intervening state, Supreme Court judgments, and in fact, opinions of this Court required further changes which were made subsequently, supplemental plans have been submitted to the District Court.

Justice William H. Rehnquist: When you say, voluntarily Mr. Stein, you mean not under the compulsion of the Districts Court's order?

Mr. William Douglas Stein: That is correct Your Honor, unlike the situation in Morris, we have never been ordered to change the plan.

That part of the order telling us to -- permanently enjoining us with state pending the appeal and is still the state as this case is here today.

Justice William H. Rehnquist: Well, then are you in a position to complain about anything that is included in your voluntary plan?

Mr. William Douglas Stein: Certainly, Your Honor, I think, we are because anything -- we are complaining that, that plan -- we have been asked to draft the plan to comply with the District Court's opinion.

That plan has been objected to strenuously by the plaintiffs here, by the way as not complied, but to the extent that we go further than as required by the constitution, I do not believe our acquiescent should be read as concession that is constitutionally required.

Justice William H. Rehnquist: You know, it seems to me that in order to maintain that position, you would have to say that because the plan was originally directed to be submitted by the District Court, it is under the force of the Court's order.

Otherwise if you are here doing some voluntarily that is beyond the constitution, I do not think you have any claim here?

Mr. William Douglas Stein: The issues, the specific issues that we have raised here in this case are not in the plan.

We do not provide counsel where the matter is pending as a criminal trial.

We do not offer the unlimited right to call witnesses, that is it.

Justice William H. Rehnquist: Here you are not challenging anything that is included in your plan, in this Court?

Mr. William Douglas Stein: That is correct.

The other problem we have too Your Honor is that we now have a Ninth Circuit Court of Appeal opinion which imposes -- this is the opinion we have appealed from here on cert review which imposes procedures waiving on the constitutional limits as we read them and it is the Ninth Circuit opinion, the jurisdiction that Ninth Circuit takes in could certainly more than California.

If that opinion is affirmed then Oregon, Washington, Arizona and New Mexico and all federal prisons in the western United States would have to comply.

Justice William H. Rehnquist: Yes, but at California, we are doing it voluntarily.

It would not have the standing to raise the claims of Oregon and Washington just because the Ninth Circuit (Inaudible) territory?

Mr. William Douglas Stein: It would require another lawsuit from Oregon or Washington, yes sir.

Justice Byron R. White: Well, are you doing voluntarily everything that Ninth Circuit says you have to do?

Mr. William Douglas Stein: No, we are not, no.

I did not want to leave that impression.

As I say to the -- just shortly before Wolff was decided in this Court, the Ninth Circuit issued its opinion which extended the due process procedures ordered by the District Court to the including of the removal of any privilege.

We petitioned for rehearing following the decision in Wolff.

A rehearing was granted.

The opinion purportedly modified to conform to Wolff.

We suggested that the entire circuit hear the case and that was denied.

We petitioned for cert and we are here today.

I am here, basically to argue two points.

The one that troubles us the most and we argued the last case as the requirement that we supply counsel in all cases where the alleged infraction is punishable as a crime and we would like to discuss the -- we view as a proper role of lower federal courts in imposing constitutional restrictions on the state prison administrators.

Briefly --

Justice Potter Stewart: I got the first point, I am not sure I got the second.

First is the same as we heard at the previous --

Mr. William Douglas Stein: The first point is whether counsel is required now to the extent that we believe that the Ninth Circuit has exceeded the direct mandate of this Court in Wolff.

We believe they have exceeded the proper rule in applying the United States Constitution in state prisons in such situations and very briefly --

Justice Potter Stewart: With respect to confrontation and so on?

Mr. William Douglas Stein: Yes

Justice Potter Stewart: I see.

Mr. William Douglas Stein: The -- there has been one nagging distinction, purported distinction in this case between the Nebraska case that I think has been put to rest by a recent California Supreme Court Decision, decided after our briefs were filed.

Throughout this case, it is always been argued by the respondents and the inmates that because of California’s indeterminate sentence law, their situation is distinguished from Nebraska’s good time credit sentencing.

The distinction being, of course, in California where the Judge only sentenced the defendant to the term prescribed by law and our Parole Board sets both the maximum sentence and the Parole released date.

They have argued that because a single disciplinary infraction of a major nature could be basis for the Parole Board's authority to extend their sentence to the maximum, which in many cases as life that it distinguishes them from the good time credit cases such as Nebraska where the man has a fixed sentence and he works it of on good time credit.

Since the briefs were filed, the California Supreme Court has considerably modified the indeterminate sentence law and its current application, I submit renders the purported distinction, one without a difference.

In a case entitled in Ray, Rodriguez reported at volume 122 of the California reporter at 552, the California Supreme Court required our Adult Authority of parole board to set a maximum sentence for every inmate based on the culpability of the individual offender as reflected in the circumstances at the time of the offense.

That sentence can no longer be raised, that term can no longer be changed.

It can be reduced, but it can never be increased back to the statutory maximum.

Now, the complaint -- the plaintiffs when they filed initial complaint, argued that the imposition of the discipline in a case would automatically or could possibly result in the extension of their sentences.

The Court of Appeals held the effect to be too nebulous to require them to proceed in habeas corpus and exhaust their state remedies, but did in fact hold that the notation of a single disciplinary could be so detrimental to their interest and liberty through release on parole, that the entire range of due process was required.

I summit that following the Rodriguez modification that you can no longer distinguish the California, the effect of the California in determining sentence law from a good time credit situation and that there is no basis on that ground to distinguish this case from Wolff.

In fact, I remember in Wolff there was one particular inmate whose good time head up to I think 17 months, good time credit removed as a result of a disciplinary hearing.

In California, that was an automatic extension to sentence, 17 months, in California the most that could occur would be a denial of release on parole as maximum sentence could no longer be increased and traditionally the denial of Parole is always been reviewed on a 12 month series.

So we submit that since our California indeterminate sentence law has been modified, in effect, our procedure is better than Nebraska's on that situation, in that case.

It cannot be distinguished and we stand on a better footing.

The main issue of course is whether a counsel is required at these hearings?

The Ninth Circuit held that in their modification of opinion following Wolff, that Wolff did not require it, but your decision in Miranda required it.

I know this has been argued before and I have to repeat it that Prison Disciplinary Proceedings is conducted in California under the procedures outlined in Wolff are not analogous to the Police Station interrogation that brought forth the Miranda rules.

There is simply no custody in the California disciplinary hearing.

The rules provide that the inmate will be present, however, no physical force will be used to bring him to the hearing if he does not wish to attend and he may leave if and when he desires.

The hearing is conducted under the proceedings in Wolff.

Justice Thurgood Marshall: (Inaudible) somebody tend to be some place, they can go there.

Mr. William Douglas Stein: Excuse me?

Justice Thurgood Marshall: If they are present that somebody tell you to go some place, you go?

Mr. William Douglas Stein: Well, Mr. Clutchette was told to move himself from the visiting table to another room and he broke a chair and assaulted the officers with a leg of it.

Justice Thurgood Marshall: And he got into a whole a lot of trouble?

Mr. William Douglas Stein: He got 29 days in isolation in cell status.

Justice Thurgood Marshall: I am saying that normally a request in a prison is an order?

Mr. William Douglas Stein: Well, that is correct, but the no one -- the rules specifically provided and all the inmates are furnished copies of these rules, they are not kept by the prison administrators to themselves.

I can almost quote them that no physical force will be used to bring the inmate to the hearing.

So they do request his appearance, but he knows that if he does not want to go, they are not going to drag him in there.

In any event, he arrives, he is informed that it is an informal panel for his findings made and they summit, there is no interrogation.

We specifically advised the man of this Fifth Amendment rights and he then is aware of it.

We gave him the opportunity.

Justice Byron R. White: You may advise him, but do you interrogate him if he does not -- do you start to take -- to interrogate him?

Mr. William Douglas Stein: The testimony here was that they asked the man how he will plead to the charge, guilty or not guilty.

That if he requests to remain silent, he will not be questioned.

Justice Byron R. White: What if he does not request to remain silent?

Mr. William Douglas Stein: Then they will question him.

Justice Byron R. White: So there is an interrogation unless he claims a privilege?

Mr. William Douglas Stein: Unless he claims a privilege and the rules would certainly provide that no adverse interest will be drawn -- no adverse interest will be drawn if he remained silent, they will not consider that adverse to the inmate.

The purpose of the hearing the course is not the same as the police station interrogation.

This Court has set that purposes of the disciplinary hearings forth better than I can.

It is also described the conditions of the state prisons and what is the reasons behind this opinions in Preiser and the tensions and all that are involved in the prison system.

I would not take time today to go back over that.

As I say, the purpose is not to elicit statements for use in subsequent criminal prosecution.

If Miranda has any effect at all, it is not, there is no -- I do not perceive that there is a right to receive the Miranda admonitions.

I think the prison authorities have the discretion to either give them or not give them, running the risk that if the inmate says anything, Miranda will be applied ultimately in a criminal trial to prevent the omission of the statement.

We have voluntary agreed to give the Miranda admonition.

It is unfortunate that the admonition that was given probably went too far, in that they advised him of his right to an attorney and when he asked about that, he was told that right arose, if the District Attorney talked to him or if he want to a criminal trial.

Justice Lewis F. Powell: When you say you voluntarily give the Miranda warnings, now does that mean you also provide counsel?

Mr. William Douglas Stein: No, we do not provide counsel.

We give the man the --

Justice Lewis F. Powell: So what in effect you are saying is you give Fifth Amendment?

Mr. William Douglas Stein: We give the Fifth Amendment and I think that as far as we should have to go, is to give the man -- advise the man of his right to remain silent under the Fifth Amendment that anything he says could be used against him in the subsequent prosecution.

At the time they were reading from the standard Miranda warning card and they went beyond that and told him of his right to an attorney, but the testimony before the District Court was that if he asked for an Attorney he would be advised that the attorney would be provided if and when he was ever prosecuted criminally, but not up here.

Justice Lewis F. Powell: And you do allow attorneys outside of the hearing room for the purpose of advising the inmate prior to the hearing?

Mr. William Douglas Stein: Well, the inmate can always communicate with an Attorney, that is true.

We do not allow the Attorney to -- as in grand Jury situation, remain outside, and inmate goes back and forth, no, we do not allow that.

We summit that Miranda does not require that we furnish attorneys.

It gives effectively what it does to give the state the choice of either continuing the questioning the man or give him an attorney.

Justice Potter Stewart: Well, it does not do that as a matter of substantive law.

Miranda simply says what may not be admitted in a criminal trial?

Mr. William Douglas Stein: It is a rule of evidence I submit and it is fulcrum for its application as an ultimate criminal trial.

Justice Potter Stewart: That is right.

It does not say what the state has to do or does not have to do, interrogation of anybody, it has to do with what can be admitted in a criminal trial?

Mr. William Douglas Stein: That is the point --

Justice William H. Rehnquist: So actually if that is right that this issue really should never come up until a subsequent criminal trial, we are just going to decide cases that are before us?

Mr. William Douglas Stein: That is correct, Your Honor.

As a matter of fact there is statistics in this record to show that some 200, in certain period of times, some 267 inmates were ultimately referred for prosecution.

11 of those inmates were prosecuted.

14 of those inmates made statements characterized by the respondents as arguably incriminating.

I submit that it is a waste of everyone’s time and effort to provide 267 attorneys at disciplinary hearings, when there is going to be ultimately 11 trials and even if every one of those 11 gave a statement and that is not clear.

That due process can satisfied by the traditional rules of volunteering.

It is the omission of the statement and an attorney is a representative at the trial.

Justice William H. Rehnquist: At any rate, there is no occasion for any court to pass on that question until it is confronted with it?

Mr. William Douglas Stein: We to tried in the Ninth Circuit -- we tried to convince the Ninth Circuit of that and yet they have in their opinion said, we must provide an attorney, whenever the crime, whenever the charges criminal, that is what brings us here.

I as anyone that we are here really I --

Justice Thurgood Marshall: This is something that is not prosecuted.

Mr. William Douglas Stein: No, he was not prosecuted. He was referred for prosecution, but the prison authorities do not decide what is and is not a prosecution.

That is the District Attorney's roll when he was -- when he receive those complaints.

Justice William J. Brennan: I think we have the distinction before us.

You have suggested that prisoner may always communicate with an attorney, but during the course of one of these proceedings, disciplinary proceedings, the attorney may not be near by for him to communicate?

Mr. William Douglas Stein: That is correct.

Justice William J. Brennan: When is it that he is permitted to communicate, that is what I do not (Voice Overlap)?

Mr. William Douglas Stein: Okay.

Well, they generally can write letters to attorneys anytime, can hear back and forth and they are given notice of the charges well before the --

Justice William J. Brennan: I see.

He will have the opportunity to somehow to communicate with the attorney in advance of the actual disciplinary proceeding?

Mr. William Douglas Stein: Yes, that is correct.

The time of notice and hearing, to say it was 6 days in this case and obviously he got in touch with his attorney because he filed the civil rights action.

Justice William J. Brennan: And may the attorney come to the institution and --

Mr. William Douglas Stein: And interview, there is visiting provided for between the inmates and the attorney, certainly.

Justice William J. Brennan: Even one as Clutchette?

Mr. William Douglas Stein: Oh! Yes, even a man on cell status or isolation is allowed out of the cell to -- to be interviewed with his attorney's visit.

Justice Byron R. White: Is there some from that the authority used at the hearing to advise him of his rights?

Mr. William Douglas Stein: There is the state -- we are using at that time standard Miranda warning card which resolve the admonitions and ask the two questions, do you understand and if you understand --

Justice Byron R. White: But would you suppose someone would understand from that, that they are advising him that whatever he says could be used against him, not only for purposes of the disciplinary hearing, but the for the purposes of some later criminal proceeding?

Mr. William Douglas Stein: Oh! It specifically says that anything you say can be used against you in the trial, in the Court, in the criminal prosecution, that is in the record.

The admonitions are set forth and they were in the ultimate.

He was first advised that he might be prosecuted criminally and that any statements he gave would be used in that -- could be used in that prosecution.

One of the problems we have is that the after the Wolff decision and we petitioned for a rehearing in the Ninth Circuit, the Ninth Circuit specifically says in their opinion that the issue of counsel in this situation was not reached by Wolff and they went to reach it.

We submit that where the lower federal courts are revealing a state prison procedure, if they want to, if they think that is unconstitutional, they should point to a direct holding of this Court.

They should not reach these matters on decisions.

They might reach where they are the ultimate arbitrary.

They can reach that, I submit to you, in Federal Prisons and Federal Litigations, but when they do that in state litigation, they limit down to one, the total -- the parameters that we can experiment.

At the moment we have every state in the Western United States is bound by this decision in Clutchette and must supply counsel and there, as I submit, there was no direct holding in Wolff and when the Ninth Circuit realized that there was no direct holding in Wolff, they should have-- at the most they could have issued, I submit, would be an advisory opinion.

That if this came up in a federal case, they would require counsel, but they should have remanded this case to the state courts where they belong.

Even Judge Zeppley (ph) at the close of the District -- the hearing we held in the District Court notes in his record that it is unfortunate that this case came at first to a Federal Court.

I will reserve any remaining time I might have for rebuttal.

Thank you.

Chief Justice Warren E. Burger: Very well, Mr. Stein.

Mr. Turner.

Argument of William Bennett Turner

Mr. William Bennett Turner: Mr. Chief Justice and may it please the Court.

There is no issue in this case as to the type of misconduct that is punishable within a prison or as to the type of punishment that can be imposed by prison officials.

The issue here involves the reliability of the fact finding process used within the prison and only in very serious cases in which there is a dispute about the fact.

We are not dealing in this case with any emergency situation and court below specifically said that prison officials always have the discretion to isolate any disrupted prisoner without any hearing.

These disciplinary proceedings involved in this case are those that can substantially alter a man's condition of confinement and prolong his term of incarceration.

Now, it is also not the issue in this case, whether the procedures that were used at the time this case was brought, meet constitutional standard because they clearly do not.

None of the safeguards that this Court required in the Wolff case were followed in 1970 when this case was brought and of course California does not contend that they were in compliance then.

Justice William H. Rehnquist: Mr. Turner, if these conditions can prolong the man's confinement as you say, why is it maintainable at all in 1983 under Preiser?

Mr. William Bennett Turner: Because the relief that is sought in this case is not release, it is not earlier release, there is no challenge in this case to the fact or duration of confinement.

Justice William H. Rehnquist: There were dysfunction of convict -- of some judgment, was it not?

Mr. William Bennett Turner: Well, there was a part of the Judgment which has never been carried out because it is been stated, it was to expunge the disciplinary records in this case.

There is no reason to believe that, that would lead to release of either of these men.

Justice William H. Rehnquist: But would it not lead to at least earlier release?

Mr. William Bennett Turner: No, not necessarily.

Justice William H. Rehnquist: Well, possibly?

Mr. William Bennett Turner: Remotely.

Justice William H. Rehnquist: But then why is it that barred under Preiser?

Mr. William Bennett Turner: Well, because Preiser says that a 1983 action is barred only when the fact or duration of confinement is being challenged and immediate or earlier release is being sought.

Now, in Wolff, this case is actually covered by Wolff because the only relief that is sought in this case, is an injunction against the perspective enforcement of prison rules.

It is exactly like Wolff in that respect, footnote 1 in the Wolff decision covers it.

There is also not properly before this Court, the constitutionality of the current procedures that are being used in San Quentin because the plan that is currently in use was not before the Ninth Circuit.

There has been a good deal of new evidence, discovery taken in the District Court and the matter is under submission in the District Court.

Judge Zerppley (ph) has not yet ruled on any aspect of the new plan and there is indeed considerable dispute about how the new plan actually operates in practice.

Chief Justice Warren E. Burger: But his claim is when you compensate that?

Mr. William Bennett Turner: I mean by that Your Honor, the plan which --

Chief Justice Warren E. Burger: Everything the Ninth Circuit ordered?

Mr. William Bennett Turner: No.

The plan that the officials formally submitted to comply with judge Zerppley's (ph) order.

Their current plan is in the record at page 296, beginning at page 296, that is the plan that they are operating under now and there is been no ruling by the District Court or by the Ninth Circuit about the adequacy of the provisions of that plan.

I take it then that the issue that the Court granted certiorari for, is to consider whether the Ninth Circuit required that when the plan is ruled upon by the District Court that that plan would be required to have too much due process in it and I take it that is the state's complaint.

Of course the state relies largely on the Wolff decision.

We do not believe that Wolff can be read as controlling every aspect of this case.

In first place the Court said that its conclusions there were not graven in stone and the record in this case shows that quite a different set of circumstances -- well, there are different circumstances here than they were in the Nebraska prisons, involving Wolff --

Justice William H. Rehnquist: But you rely on that language not graven in stone for a case remanded to a Court of Appeals for reconsideration in the light of Wolff?

You suggest that the Court of Appeals is free to take some tact that is in anyway inconsistent with Wolff?

Mr. William Bennett Turner: No, I think they clearly have to follow Wolff, but they have to follow Wolff only insofar as Wolff actually holds one thing or another.

In this case --

Justice William H. Rehnquist: But you would be regardless of whether there were language about being graven in stone?

Mr. William Bennett Turner: That is of course true.

The primary distinguishing factor here, between the situation in Wolff is California’s unique indeterminate sentence law where the ranges of sentences is, so for example, in Clutchette’s case, his sentence for second degree burglary was six months to 15 years and most of the common felonies carry sentences of, from five years to life.

The Adult Authority which does the actual sentencing and set parole dates as well as maximum sentences usually meets a prisoner on an annual basis and either sets a date or does not set a date, but every disciplinary infraction must be referred to the Adult Authority for consideration at that time.

Justice Potter Stewart: And where is Clutchette now?

Mr. William Bennett Turner: Clutchette is on Parole, he was paroled in 1972.

Justice Potter Stewart: So this case is moot as to himself?

Mr. William Bennett Turner: Yes, no doubt about that.

Justice Potter Stewart: No question in that?

Mr. William Bennett Turner: Unless he is re incarcerated, he would be entitled --

Justice Potter Stewart: Very well, is it or is it not moot as to him?

Mr. William Bennett Turner: Yes he is, he would not be entitled to any relief here individually.

Justice Potter Stewart: Alright, but there is now a named intervening plaintiff, who was that?

Mr. William Bennett Turner: Yes, Alejandro Ferro who was joined as a party plaintiff in 1972 and who is still incarcerated at the San Quentin.

Justice Potter Stewart: But it makes no difference now with respect to Clutchette that he is -- that the actual hearing he had did not comply with requirements in Wolff?

Mr. William Bennett Turner: That is right.

I suppose he might theoretically be interested in expunction.

There is a damage claim which he made which has never been formally abandoned, but I doubt seriously that it would not be pursued.

Justice Potter Stewart: Well you said it was moot as to Clutchette, now it either is or it is not?

Mr. William Bennett Turner: I think for present purposes the Court may consider that claimed abandoned, as to him.

Mr. William Bennett Turner: In the District Courts opinion, it said, Judge Zerppley (ph) said that the case is brought as a class action under Rule 23 (b) (1) and (b) (2) and clearly all the requirements were met.

There was no separate motion to certify the class.

Justice William J. Brennan: (Inaudible) certification?

Mr. William Bennett Turner: I should think so, there is no question about the fact that the class --

Justice William J. Brennan: This new plaintiff, this intervenor --

Mr. William Bennett Turner: He is a party plaintiff not --

Justice William J. Brennan: That is what I mean, whether or not it is class action, it is --?

Mr. William Bennett Turner: He has standing to raise all of the issues here, no doubt about that.

Justice William J. Brennan: I think in Jacobs last year, we held that where a District Court had made exactly the same observation as you suggest Judge Zappley (ph) made here that, that was not a sufficient certification, but I take it, it does not make any difference?

Mr. William Bennett Turner: I do not think it makes any difference in view of the other plaintiff who does have standing.

Justice Thurgood Marshall: Who are the members of the class?

Mr. William Bennett Turner: I beg your pardon?

Justice Thurgood Marshall: Who are the members of the class?

Mr. William Bennett Turner: All prisoners at San Quentin, that is how the class was defined in the initial complaint.

Justice Thurgood Marshall: They have brought the claim --

Mr. William Bennett Turner: Well --

Justice Thurgood Marshall: Well, there were all brought up on the disciplinary action?

Mr. William Bennett Turner: No, but they maybe at anytime and any moment of any day, they are subject to being called before the disciplinary board on very serious charges.

Unknown Speaker: That all the people are arrested and all the people are (Inaudible).

Mr. William Bennett Turner: The Adult Authority does not hold its own fact finding hearings.

It relies on hearing that was conducted in the prison and this is what means that the consequences of what happens to the disciplinary hearing are very serious because as the California Supreme Court has held a single disciplinary infraction is sufficient cause to deny parole or to rescind the parole date which is previously have been granted.

That is why the Supreme Court's case in Rodriguez mentioned by counsel does not make any difference because when they set a tentative parole date, they can then rescind it on the basis of a disciplinary offense and make a man serve a whole lot longer in prison as a result.

It is the difference between being paroled next month and possibly five years from now when your maximum sentence expires.

The indeterminate sentence has particular relevance where the charge against the man is criminal in nature where as in Clutchette’s case he is charged with assault on an officer and that is fairly heavy felony under the California law.

In that kind of case, the state has an effective option of how to deal with the man.

It can achieve further incarceration, additional incarceration, either by following through in the criminal process or can do the very same thing through the Adult Authority with far less procedural ceremony.

Summarily they can make the man serve far longer.

The issue to be tried of course in these disciplinary proceeding is the same issue that would be tried in a criminal trial.

Did the man or not commit the criminal act?

The courts below properly held that the San Quentin procedure that was used when this case was brought failed to protect the Fifth Amendment privilege.

This is because the man is faced with incurring a very serious and immediate punishment if he does not speak in his own defense.

He has no adequate alternative means of defense besides speaking for himself.

At this time in San Quentin, he had no right to call any witnesses, he could not cross examine anybody, he had no counsel, he had no counsel substitute, he was left wholly on his own.

The sole means of defending himself was to explain his situation, but how could he do that and also exercise his Fifth Amendment privilege, is that dilemma that the Ninth Circuit addressed itself to and of course the dilemma is doubly difficult for the prisoner because he does not have the advice of counsel.

There is nobody there to advise him on the intricacies of the Fifth Amendment, rather there is any realistic risk of prosecution as a result of this event or whether what he wants to say might tend to incriminate him and it is just not accurate to say that prisoners at San Quentin can routinely consult with counsel.

I have heard of very few San Quentin prisoners who have access to counsel.

As the Court must recognize virtually all of them are indigent.

The only reason Clutchette had counsel was because he was at this time already under indictment for a felony, an in prison felony in California and that is the only reason he had counsel and could consult with him.

So the situation facing the prisoner in these disciplinary hearings is either he has to forfeit his only means of defense, the right to speak in his own behalf or he has to waive the Fifth Amendment privilege.

This conflicts we submit with the line of cases in this Court most recently Lefkowitz and the earlier cases that say a state cannot penalize the exercise of the Fifth Amendment and cannot coerce people to give incriminating testimony against themselves.

It does not make any difference that formally, in this case, the prisoner is not being punished for taking the Fifth Amendment and it does not make any difference whether or not there is an inference drawn from his silence because he does not have any other means of defending himself.

Justice Byron R. White: In Lefkowitz if he did not talk, he would his job?

Mr. William Bennett Turner: That is right and here if he does not talk, he for sure gets the disciplinary punishment.

There is really no doubt about it.

Justice Byron R. White: Well, that is not for being silent?

Mr. William Bennett Turner: No, it is not for being silent, because of being silent, because he has no other defense.

Justice Potter Stewart: That was because of the evidence against him, is it not?

That he was silent, because of what is the evidence (Voice Overlap)

Mr. William Bennett Turner: The question is whether he is required to forfeit all defense, his only defense, whether due process can count on the stat.

Justice Thurgood Marshall: Is it true that he had 14 affidavits in this case.

14 sworn, I mean written statements against him?

Mr. William Bennett Turner: There were written statements filed.

Justice Thurgood Marshall: 14?

Mr. William Bennett Turner: But I do not how many there were?

Justice Thurgood Marshall: Why do not you?

Mr. William Bennett Turner: He was not shown any of those statements of course whether reporting against --

Justice Thurgood Marshall: Well, if you so it could be that they thought he was guilty, form the statements --

Mr. William Bennett Turner: No doubt about that.

As they do in most cases but --

Unknown Speaker: (Inaudible)

Mr. William Bennett Turner: That is right.

Justice William H. Rehnquist: When you talk about forfeiture under your language, is it not McNaughton pretty much against you?

Mr. William Bennett Turner: Well, it is not for this reason Your Honor.

In McNaughton the accused have the most elaborate procedural protections known under our law.

He had the lawyer, he had the presumption of innocence, state required to prove guilt beyond the reasonable doubt, trial before Jury, drawn from a cross action of the community, his counsel as the court went out of the way to say could do everything that they accused himself wanted to do in a way of explaining mitigating circumstances to the jury.

Justice William H. Rehnquist: But he still had to decide whether they take the stand or not?

Mr. William Bennett Turner: He had to make that choice, but the point is that if he made the choice to remain silent, he was still not without means of defense whereas the prisoner in the situation has nothing going for him other than the right to speak in his own behalf.

Everybody agrees that due process says that you have the opportunity to be heard in your own defense, but he cannot have it here if he wants to take the Fifth Amendment.

Unknown Speaker: (Inaudible)

Mr. William Bennett Turner: Because he maybe concerned about protecting himself in a later criminal prosecution.

If he wants to exercise his Fifth Amendment privilege, that means he cannot defend himself in the hearing.

Justice William H. Rehnquist: What if he just wants to say, I just want to point out here some of the short comings in the testimonies of other witnesses.

Is he prevented from doing that?

Does he then open himself up for a complete interrogation?

Mr. William Bennett Turner: I do not know.

Justice William H. Rehnquist: Well, if your answer to that is no, I would think there is not much to your argument?

Mr. William Bennett Turner: Well, the point is if he does not do something at the disciplinary hearing, he is going to be punished by the tribunal there.

That punishment may include an immediate dose of solitary confinement, the other punishments that available in California as well as an increased term of imprisonment when the Adult Authority takes a look at him.

So he has got to make up his mind right then and there whether he is going to --

Justice Byron R. White: Well I know but that that argument would seem that -- it would not make any difference in what is this conduct is otherwise (Inaudible)

Mr. William Bennett Turner: Well, the difference is because of the Fifth Amendment.

He may not want to take the risk of saying something that would --

Justice Byron R. White: That would prejudice him during this disciplinary proceeding.

Mr. William Bennett Turner: Well, it is both --

Unknown Speaker: (Inaudible)

Mr. William Bennett Turner: No, but this case is different from Wolff because of the possibility of criminal prosecution and he has to do one of two things, either take the Fifth or defend him self.

Justice William H. Rehnquist: How do you know there was no possibility of future prosecution in the Wolff?

Mr. William Bennett Turner: Well, I have been told that in the District Court, the prisoners offer evidence that they have been accused of things which could have been considered crimes, but as I understand it, it was neither briefed nor argued by any party here that there was a criminal prosecution problem in the case and it is not adverted to in the court's decision in any way.

I suppose if I am wrong in my reading of Wolff will find out about the decision of this case, but I would suggest to the Court that the factors involved here are so much different from Wolff when you have the specter of a criminal prosecution and fully protecting the man's Fifth Amendment privilege.

Justice Byron R. White: The State say that the (Inaudible) California situation that the man may at any time decide that he does want to talk or talk anymore or he could leave?

Mr. William Bennett Turner: Well, I do not think the record shows one way or another on that, but assuming he could walk away from it --

Justice Byron R. White: Or he can say look, I do not want to talk anymore, I have now said all I want to say?

Mr. William Bennett Turner: He is giving up any defense to the disciplinary infraction and he has to take the consequence that they have.

Justice Byron R. White: He may stop it any time, do you think he can or not?

Mr. William Bennett Turner: Yes, I have no reason to doubt that he can stop at anytime, but then suffer the consequence of disciplinary punishment.

Chief Justice Warren E. Burger: That fundamentally is very much different than the decision made by defendant in a full criminal case that he will not take the stand after there has been overwhelming evidence against him?

Mr. William Bennett Turner: Well, I think the distinguishing factors are two. Analytically, it seems to make a difference in the court's decisions whether the --

Chief Justice Warren E. Burger: Which court's decision?

Mr. William Bennett Turner: This Court.

Chief Justice Warren E. Burger: You mean Wolff?

Mr. William Bennett Turner: Wolf and Lefkowitz and McNaughton and all of the decisions that deal with these various issues.

If the person is going to suffer serious consequences that may not make the difference, but if he has no alternative means of defending himself, that will, that is if the person is going to suffer grievous harm, if he does not defend himself and if there is no other means of defending himself.

Chief Justice Warren E. Burger: And you say --

Mr. William Bennett Turner: Then there is a serious problem.

Chief Justice Warren E. Burger: When you say if he does not defend himself, you mean if he does not speak or do you mean if he does not come in with a full scale effort to meet the evidence of a witness?

Mr. William Bennett Turner: I only meant to say speak because that is all that the prisoner has going for him, at least at the time this case was tried.

His only means of defense, he could not call any witnesses, his only means of defense was what he could say to explain with the charge.

Justice Byron R. White: (Inaudible) it probably get that far.

Suppose the question is (Inaudible) so they ask him, they say, well and simple question is did you beat up the guard or not?

Now, he says, well, I decline to answer and they said, fine, is there any other -- do you want to answer any other question, he says no, now does he give up any defense?

I need to answer that question.

Mr. William Bennett Turner: Because if he could for example if his defense was, I was there, but it was the man next to me who hit the guard.

Justice Byron R. White: Now, he does not give up any defense by saying that?

Mr. William Bennett Turner: No, but saying that he was there may incriminate him in a criminal trial and maybe an important piece of evidence against --

Justice Byron R. White: (Inaudible)

Mr. William Bennett Turner: In the criminal trial?

Justice Byron R. White: Yes.

Mr. William Bennett Turner: That is right he does not give up any defense in the criminal trial.

If he refuses to answer the question then --

Justice Byron R. White: And by the way, do you know whether there are any claims or any, there is no law that says if you lie in one of these proceedings, you are subject to perjury?

Mr. William Bennett Turner: No, I do not believe so.

It is not the usual conducted under oath.

The issue before the Court has been so much mis-characterized.

It is not whether counsel has to be provided in these proceedings.

It is whether some kind of special precautions have be taken because of the -- to the collision of two constitutional rights.

Unknown Speaker: Some kind of meaning what?

Mr. William Bennett Turner: Some kind of special precautions, well, the Ninth Circuit specified three.

First it said that the state can postpone disciplinary proceedings.

Now, that is fine and doable if the state is not warning to impose segregation or some kind of disciplinary like punishment while the case is pending in Criminal Court and that is many, but definitely not all of the cases.

In many of the cases, the state is going to say no we do not want to wait until the criminal proceeding is over.

Well, then the Ninth Circuit said yes, that the state can hold a hearing and then it has the choice between providing counsel to protect the Fifth Amendment or providing Use Immunity.

Use Immunity is a very simple and workable solution in these circumstances.

It would eliminate the problem essentially because the man could testify freely and what he says could not be used against him and would eliminate the need for counsel there, but the Ninth Circuit as I read the decision left it up to the state to make that choice.

Chief Justice Warren E. Burger: Is it possible for them, if they give a use immunity to couple with that a requirement that all his statements to be under oath and subject to the penalties of perjury?

Mr. William Bennett Turner: The state could do that because it would then be openly compelling testimony and can do so as long as it immunizes the --

Chief Justice Warren E. Burger: Is there any more or less compelling whether he is under oath or not under oath?

Mr. William Bennett Turner: No, I don not think that makes a crucial --

Chief Justice Warren E. Burger: And the difference is that in one case he maybe subject to criminal prosecution for perjury, is it not, and that might keep the whole proceeding on the track a little bit?

Mr. William Bennett Turner: That is right.

I think it would be an excellent idea.

Chief Justice Warren E. Burger: When you spoke in response to Justice Wright about his giving up something, if 14 witnesses have placed him at the scene.

What do you suggest he is giving up when he responds?

Mr. William Bennett Turner: Well, in this case, the defense was clearly going to be self defense and he is giving up --

Chief Justice Warren E. Burger: Then it would not incriminate him just to say he was there?

Mr. William Bennett Turner: No, not in that case, but to go any step beyond that might get him in very deep trouble and assaulting an officer in the California prison under the California Penal Code is a very serious felony and he should not been put to that choice between either saying nothing or giving up the Fifth Amendment.

This choice that the prisoners are confronted with, cannot be postponed under the criminal trial to see whether what he says might be admitted or might not be admitted in evidence.

The constitutional violation occurs that the hearing where he is required to forfeit one right or the other.

Justice William H. Rehnquist: Well, would you say the constitutional violation in a typical Miranda interrogation followed by a criminal trial occurs that the time of the interrogation or only if the court fails to exclude the evidence?

Mr. William Bennett Turner: Only at the trial, at the criminal trial.

Justice William H. Rehnquist: In other words the defendant could not get an injunction out of perhaps Judge Zerppley to say that you may not interrogate this man without giving him Miranda warning.

Mr. William Bennett Turner: No, not in an individual case, that would clearly be a matter for the states courts to deal with on the criminal prosecution.

There are several other issues in this case.

I intend to touch only on the other major issue which involves the right of confrontation or cross examination and of course there was no such right at the time this case was tried in California prisons.

What the Ninth Circuit did in light of the decision in Wolff, holding that there is no general right of cross examination, but that this would be committed to the discretion of prison officials.

The Ninth Circuit simply prescribed a method by which arbitrariness could be controlled and said every time you deny cross examination, put your reason on the record.

The petitioners in this case have no quarrel with the requirement that they record reasons for denying cross examination.

That present plan does exactly that and they have been leaving unto that plan now for about three-and-a-half years.

Now, what they do complain about is that the reasons given authorized by the Ninth Circuit are not brought enough.

Justice William H. Rehnquist: Well, that really stands Wolff of its head what the Ninth Circuit did and that we said that the general presumptions against cross examination in Wolff and the Ninth Circuit comes along down and says the presumption is in favor of cross examination.

Mr. William Bennett Turner: Well, we do not think that Wolff can be read as a declaration by this Court that never in any circumstances can there be a right of cross examination.

Justice William H. Rehnquist: No, that was not my question to you because I said I would read Wolff as saying there is a presumption against cross examination and now along comes the Ninth Circuit and says there is a presumption in favor of it.

Now, do not you think that it is inconsistent with Wolff?

Mr. William Bennett Turner: Oh, I think it is inconsistent with the spirit of Wolf.

Justice William H. Rehnquist: And then what business does the Ninth Circuit have doing that on a remand for reconsideration in the light of Wolff?

Mr. William Bennett Turner: Your Honor it was not a remand.

The court agreed itself to rehear it in light of Wolff and it is giving its own reading to Wolff and every other court to address this issue since Wolff has done the same thing.

Justice William H. Rehnquist: Well, what business do any of them had, then if you say it is inconsistent with spirit if Wolff?Mr. William Bennett

Mr. William Bennett Turner: I think the reason the courts are doing that is because they read Wolff carefully and see that in Wolff, Nebraska in fact permitted a limited right of cross examination.

The prisoner was allowed to meet with the charging party and then at the hearing itself to ask the charging party questions.

So there was a limited right of cross examination in Wolff itself.

Then what the court said that went beyond that was not really necessary to the decision there, but probably more important than that --

Justice William H. Rehnquist: Well, you mean what the court said in Wolff was not necessary to decision?

Mr. William Bennett Turner: If Wolff can be read as saying there is never right of cross examination, that certainly would not have been necessary to decision.

Justice William H. Rehnquist: Well, and you think that the Court of Appeals are then free to say there is a right of cross examination?

Mr. William Bennett Turner: No and that is not what the Court said here either.

All they said is do what the state is doing now and that is provide reasons so that you can see whether the people are, whether the officials are dealing fairly with prisoners in these situations.

In Wolff the District Court in that case feeling itself bound by then existing Eighth Circuit precedent did not take any evidence whatever on whether a limited right of cross examination is workable and the problems that might result if it were used.

We think that this is a matter that is susceptible of proof and in the District Court in this case, before the District Court gives final approval to any rules, there ought to be an opportunity to take testimony on these problems because after all a large number of states, 28 states according to the ABA survey, implement some kind of cross examination rights, some kind of confrontation.

Justice William H. Rehnquist: But that should be permissible only if Wolff left it over?

Mr. William Bennett Turner: That is right and --

Justice William H. Rehnquist: You really care when you say it is contrary to the spirit of Wolff I gathered, you said at least you thought you did not think it left it over?

Mr. William Bennett Turner: Well no, I certainly think that the Ninth Circuit did was proper in this case and that decision not to be affirmed so that the case can go back down to the District Court finally to dispose on what due process requires in this case.

Justice Lewis F. Powell: Mr. Turner I want to come back to that point you arrived yet.

I am looking at the question number one in your brief and you end up by saying, there must be a hearing that the fact the Fifth Amendment privilege of inmate, the question is phrased in the brief of the Attorney General of California, states that specifically in terms of the requirements of counsel being present, can you beyond that?

Mr. William Bennett Turner: no we do not go that far Mr. Justice Powell.

Justice Lewis F. Powell: What exactly do you say it requires by the Ninth Circuit?

Mr. William Bennett Turner: That is -- that the Ninth Circuit gave the state options, three options of dealing with the situation providing special precautions at the hearing.

One is to postpone the hearing until you see whether the district attorney is going to prosecute until the trail is concluded.

That obviously eliminates the problem expect when the state wants to take immediate action and they may well be able to leave with postponement in many cases, but where it wants to take immediate action and hold the hearing then the two options, either counsel or Use immunity and the Ninth Circuit would permit either one.

That is why the issue that is before this Court is not simply whether counsel has to be provided.

Justice Lewis F. Powell: And these three options applied only where the misconduct also constitutes a crime?

Mr. William Bennett Turner: That is correct Your Honor.

Chief Justice Warren E. Burger: On that way it does but where it may, is not that qualification?

Mr. Turner correctly pointed out the Ninth Circuit did provide us with three options, but in reality they boiled down to just one of counsel I submit, both parties are -- postponement is unacceptable to both parties.

We have been accused in the Circuit Court and in the District Court of doing under the term classification, but the District Court and the Ninth Circuit said we could not do as discipline.

We do not want to postpone these things and our plans for all cases other than -- these are involved criminally, we are trying to get this over in 72 hours, that is the way to maintain discipline in state prisons not with postponement.

We postponed these major conditions -- these major cases we have to confine the man under some imposed condition, to restrict his freedom, to move about and we are accused of doing by subversion what we cannot do directly.

Use Immunity, there is no -- really I do not think see anything as Use Immunity, Your Honors.

It seems to me what we were talking about is the traditional theories and notions of voluntariness of confessions which is law, clack letter law, all them, but if the man is compelled to make a statement then some sort of Use Immunity is required, but that is not -- Use immunity is nothing new.

That Use Immunity is the trial court's hearing under Johnson v. Avery on the voluntariness of the statement that was made.

We agree as anyone must, that looks at this thing that the prisoner faces a difficult choice.

There is no question about that, but what is counsel going to do for him?

What role have we -- this counsel, we have been talking about counsel, what roles do you see him to play here?

He is a mere advisor.

Unknown Speaker: But why do agree -- what is the difficult choice?

Mr. William Douglas Stein: Okay, he faces a difficult choice if he can make some sort of pitch to the disciplinary board it might get him out of the discipline, but might incriminate himself in the trail court.

Unknown Speaker: Why would it?

If it is going to get him out of disciplinary infraction, why we are getting into a criminal offense?

Mr. William Douglas Stein: Well -- he -- I assume that -- it might be --

Justice Potter Stewart: He might charged --

Mr. William Douglas Stein: He might make a statement that the prosecutor can use later as prior inconsistent statement or something like that.

He is certainly not going to confess to a criminal charges as a way of getting out of disciplinary, no that is not --

Justice Potter Stewart: The only thing he is going to say because of the way of the disciplinary proceeding is something that he thinks is going to help him?

Mr. William Douglas Stein: He thinks will help him.

Justice Potter Stewart: And that is probably not going to be incriminating, is not it?

Mr. William Douglas Stein: Probably not direct.

Justice Potter Stewart: But why is it so inevitably such a difficult choice?